Price v. McIver, 25 Tex. 769

Price v. McIver

25 Tex. 769 | Tex. | 1860

Wheeler, C. J.

The provisions of the statute respecting the allowance of claims by the executor or administrator, apply in terms only to -such claims as existed against the testator or intestate. (O. & W. Dig., Art. 755, 757.) Provision is made for the allowance to the executor or administrator by the chief justice of all reasonable expenses incurred in the preservation, safe keeping and management of the estate. (Ib., 820.) This provision comprises the only debts which the executor or administrator can create against the estate. And it contemplates that he will have incurred the expense by the payment of money or by becoming *771personally responsible to third persons. On general principles of equity it has been held that the estate may be held responsible to third persons with whom the administrator has created debts properly chargeable against the estate. But to enable a third person to hold the estate so responsible he must take upon himself the burden of proving that it was a reasonable expense incurred for the benefit of the estate, in the same manner as the administrator must have done had he incurred the expense and presented his claim for allowance by the chief justice. (Caldwell et al. v. Young & Morgan, 21 Tex.) When the claimant thus comes in place of the administrator he must have his claim allowed by the latter; otherwise, payment can not be enforced in the probate court. The law has conferred on the executor or" administrator the authority to judge, in the first instance, of the propriety of incurring expense on account of the estate. If he disallow the claim, it necessarily involves litigation between him and the claimant, and the probate court is not the appropriate forum for conducting such litigation. The manifest intention and policy of the law, deducible from its several provisions, is opposed to the institution of suits in the probate court by third persons for the establishment of claims against the estate. That court has no authority to order the payment of claims by the executor or administrator which have not been allowed by him, or established by suit to which he was a party. (Ib. 786.) We, therefore, think that although the provisions respecting the allowance of claims do not in terms apply to such as have accrued after the death of the testator or intestate, yet if the holder elects to hold the estate liable instead of the executor or administrator personally, he should bring his case within the provision for the establishment of claims against the estate. That he may do so, we have heretofore considered. (Portis v. Cole, 11 Tex. R., 159; Caldwell v. Young et al., 21 Ib.) If allowance of the claim by the executor is relied on, it ought to be such as will preclude him from litigating the justice of the claim in the probate court; unless on such grounds as would authorize him to repudiate his allowance of the claim, as fraud or mistake. There was no such allowance of the plaintiff’s claim. The giving of the note by the executor did not bind the *772estate. (Ib., 820.) Nor was it such an act as would preclude the executor from setting up any defence he may have had to the note when presented for payment. We, therefore, think the claim was not authenticated or established in such a manner as to authorize the plaintiff to proceed in the probate court to enforce its payment by the executor. Being contested by the executors, it necessarily involved litigation between them and the claimant, and converted it into a suit for the establishment of the claim against the estate in the probate court, contrary to the manifest intention and policy of the law.

We are of opinion, therefore, that the probate court improperly took cognizance of the case, in the shape in which the claim was presented; and that the District court erred in its judgment maintaining the jurisdiction of the probate court. The judgment must, therefore, be reversed and the cause dismissed.

Reversed and dismissed.